Law School Case Brief
Hoch v. Rissman, Weisberg, Barrett, Hurt, Donahue & McLain - P.A., 742 So. 2d 451
Slander per se is actionable on its face, but slander per quod requires additional explanation of the words used to show that they have a defamatory meaning or that the person defamed is the plaintiff. In slander per se actions, general damages are presumed; for per quod actions, the plaintiff must allege and prove special damages. An oral communication that imputes to another conduct, characteristics or a condition incompatible with the proper exercise of his lawful business, trade, profession or office is slander per se.
In the early 1990's, the Rissman law firm presented a series of seminars entitled "Sleeping with the Enemy." These seminars provided "inside" information about the tendencies and proclivities of lawyers, judges, and other individuals in the area of worker compensation claims. This information was designed to help claims adjusters process their files - to decide whether claims should be settled or controverted, and whether certain lawyers should be pushed for trial or approached for an early settlement. At the time, Hoch was a compensation claims judge. During one of the seminars Rissman allegedly noted that "if you wanted to influence Hoch you should have sent in men in tight shorts before him." Hoch filed suit against appellees for slander, libel, and conspiracy to defame. Hoch acknowledged his homosexuality, but alleged that the defamatory statement suggested that he was a pedophile or that he could be improperly influenced in his judicial duties by his sexual orientation. Hoch also claimed that he was denied reappointment to his judicial position.
Did Rissman commit slander per se?
The court reversed the trial court decision as it found Rissman appellees committed slander per se. Slander "per se" is actionable on its face, but slander "per quod" requires additional explanation of the words used to show that they have a defamatory meaning or that the person defamed is the plaintiff. In slander per se actions, general damages are presumed; for per quod actions, the plaintiff must allege and prove special damages. Here the statement about Hoch suggests that his judicial duties could be improperly influenced. This imputes conduct or a condition incompatible with the proper exercise of his judgeship and constitutes slander per se.
Courts have recognized a distinction between a pure expression of opinion, which is not actionable, and a mixed expression of opinion. In determining whether the statement is one of pure or mixed opinion, the court must examine the statement in its totality and the context in which it was uttered or published. Some of the statements attributed to the Rissman defendants may be expressions of pure opinion. However, the comment about Hoch implies that he could be improperly influenced in his judicial decision-making. This comment is based on facts not disclosed and would not be an expression of pure opinion.
As a public official, Hoch was required to prove that the publisher of the defamatory statement acted with "actual malice." Actual malice is established by showing that the publication was made with knowledge that it was false or with reckless disregard of whether it was false or not. Rissman defendants themselves acknowledged that the statement was disparaging and false and that they never believed such a statement about Hoch. This establishes that the Rissman defendants knew the statement was false and is a sufficient showing on the issue of actual malice.
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